This blog is designed to serve as a repository of analyses, news reports and press releases related to the issue of RERAPATIONS within the framework of the Extraordinary Chambers in Courts of Cambodia (ECCC), a.k.a. the Khmer Rouge Tribunal.

Sunday, June 3, 2012

Appeal Judgment of the
ECCC Supreme Court Chamber in Case 001: More on the Summary of the Appeal
Judgment and in Greater Detail (In Several Parts): Part III

Rape as a Crime Against Humanity from
1975-1979 (Ground 2 of the Co-

Prosecutors’ Appeal)

SCC was spot-on on the
prosecution’s contention for convicting the convicted person of rape as a crime
against humanity. The Chamber’s decision on the matter correctly reflected the
record which contains 1 (expressed through ‘the’ before ‘incident’ in the
relevant part of the Summary) untested allegation of rape, the fact that rape
was not recognized as a crime against humanity during the temporal jurisdiction
of the ECCC ALTHOUGH THE CHAMBER TRIED TO CREATE A RULE OF
CUSTOMARY INTERNATIONAL LAW OUT OF CAMBODIAN DOMESTIC LAW BUT FOUND THAT THAT
COULD NOT BE DONE. THE CHAMBER DID THE RIGHT THING ABANDONING THIS ARGUMENT AS
ITS CONSTRUCTION IS DUBIOUS AT BEST, and that even if it had
been, one incident of rape would not have amounted to ‘a crime against
humanity’ which requires a certain scale of perpetration. While it is
understood that the prosecution uses the kitchen sink approach to its
submissions, this argument was simply made in bad faith, ladies and gentlemen
of the prosecution, and had no way of achieving anything other than wasting the
Court’s time. But, not so fast. It is all downhill from here for the SCC,
though, and on the up-and-up for the prosecution. Having said the above, the
Chamber proceeded to find that rape “could constitute the crime against
humanity of torture during the ECCC’s temporal jurisdiction” for the following
reason: “[c]ertain acts are considered by their nature to constitute severe
pain and suffering […] these acts include rape”. Three reasons why the SCC
blundered here: (1) the oft-referenced principle of legality throughout the
Summary, inter alia, means that no court can rely on an authority (it can be
cited but as a cliff note, not as an authority) which did not exist at the time
of alleged commission and definitely not the one that came out of a court which
did not come into existence, in any form, at least until 1998; (2) there is a
gulf of difference between a human rights violation and a crime against
humanity, even if the violation of a human right is grave; (3) while there is
no contention that torture was criminalized by the number of international and
national instruments (albeit undefined in most cases the SCC POINTED THIS OUT. HOWEVER, THE CHAMBER ALSO SPENT TIME
DISCUSSING THE DEFINITION OF TORTURE IN THE 1975 TORTURE DECLARATION AS OPPOSED
TO THAT ADOPTED THROUGH THE 1984 TORTURE CONVENTION. THIS ISSUE IS OF INTEREST
FOR PURELY ACADEMIC REASONS AND DOES NOTHING TO AID IN THE DISPOSITION OF THIS
CASE FOR A VERY SIMPLE REASON (TO WHICH THE CHAMBER, IN PART, CONCEDES): THE
1975 DECLARATION WAS A MERE DECLARATION AND AS SUCH HAD NO BINDING FORCE AT THE
TIME OF THE TEMPORAL JURISDICTION (WITH THIS SAID, IT MIGHT BE POSSIBLE TO
ARGUE THE PRESENT OF OPINIO JURIS FOR THAT DEFINITION BUT ANY ARGUMENT TO THIS EFFECT
WILL BE WALKING ON THIN ICE AS A MERE NONOBJECTION TO A STATEMENT (NOT A
UNANYMOUS VOTE AS THE CHAMBER WOULD LEAD US TO BELIEVE) IS NOT ON ITS OWN
INDICATIVE OF THE EXISTENCE OF OPINIO JURIS ON THIS ISSUE).

to find that (i) rape was
imputable to the convicted person the SCC should have shown that he either knew
about that particular incident or that rape was common place at S-21 or that
rape was encouraged or ordered by the convicted person (there isn’t a shred of
evidence in the record to show any of these); and (ii) rape at S-21 amounted to torture, the SCC should have
shown that rape was committed as a method of torture at S-21 (Prosecutor v Kvocka would have been instructive on the issue NOT KUNARAC WHICH WAS POORLY REASONED AND WHICH DECLARED THAT RAPE
ALWAYS CONSTITUTED A CRIME AGAINST HUMANITY REGARDLESS OF THE INTENT); as torture is committed to either (1) extract information; or
(2) mete out a punishment; or (3) cause intimidation, the SCC should have shown
that the sole incident of rape in the record was committed for at least one of
these purposes as commission of rape for any
other purpose couldn’t have been found to amount to torture. I think the SCC
was thinking of Abu Ghraib (it is curious to note that the Taguba Report listed
multiple instances of rape at Abu Ghraib of which the US government possesses photographic
evidence; interestingly, the person who had what is roughly Son Senn/Noun
Chea's job, Donald Rumsfeld, eventually lost his job but not solely for the
reason of Abu Ghraib; the person who had Duch's job, Janis Karpinski, was
reprimanded and demoted a rank (which means she is still in the service), the
person who had Chan's job, Steven L. Jordan, had all charges against him thrown
out (all 12 of them; 2 of these charges were dismissed for the reason of --
wait for it -- wait for it longer -- the investigator failing to read him his
rights; the court-martial felt it would be fair to do so as a remedy; SCC felt
that Duch's 8 years of detention for no other reason than to await the creation
of ECCC did not merit any relief) and was reprimanded for insubordination; and
Duch was convicted of rape as the crime against humanity torture; something to
ponder on) when writing this, not of S-21. I do see how a court of law could
find sufficient factual basis to find that rape was used as a method of torture
at Abu Ghraib, but not S-21 which is the facility the SCC dealt with here.

This is a historical
sidebar which is not meant to buttress my above counterargument but I can’t
leave it alone for its glaring nature. SCC found that “the widespread
recognition by the community of States of the gravity of torture demonstrates
the foreseeability of criminal prosecution for such conduct as a crime against
humanity”. This is a remarkable statement. While, as pointed out above, there
is no question that torture was prohibited by international statutes at the
time of the alleged commission, my quarrel is with the “widespread recognition
by the community of States”. Was the convicted person supposed to gauge this
state practice and opinio juris folded into one from the fact that a war was
being waged right next door to his country where torture was being practiced on
a massive scale by all the 3 countries (North Vietnam, South Vietnam and the
US) involved or was it from the fact that there had not been a single
prosecution on the basis of torture in the US throughout the entire US
involvement in the Vietnamese civil war? Or it is from the torture manuals that
the French left behind? Maybe it is from the practices adopted in China and the
Soviet Union or South America. Who, the Chamber’s opinion, constituted “the
community of States” between 1976 (the year S-21 opened doors) and 1979? Was
“the community of States” limited to Switzerland and Scandinavia? THE TECHNICAL ASPECT OF THE CHAMBER’S HOLDING ON THE QUESTION IS
EVEN MORE INTERESTING: IT FOUND THAT RAPE WAS NOT A DISTINCT CRIME AGAINST
HUMANITY DURING THE TEMPORAL JURISDICTION BUT THAT IT WAS PART OF THE CRIME
AGAINST HUMANITY OF TORTURE (IT IS POSSIBLE TO AGREE WITH THE CHAMBER UNTIL NOW,
ALTHOUGH INTENT TO USE RAPE AS A METHOD OF TORTURE IS THE TEST WHICH TURNS
ORDINARY RAPE INTO RAPE AS AN ACT PUNISHABLE AS CRIME AGAINST HUMANITY OF
TORTURE) AS DEFINED IN THE 1975 TORTURE
DECLARATION (THIS IS INDEFENSIBLE AS THE STATUS OF THE 1975 DOCUMENT AS A
DECLARATION AND THE CHAMBER’S FAILING TO SHOW THAT IT CONSTITUTED OPINIO JURIS
ON THE MATTER MAKE IT INAPPLICABLE TO THE TEMPORAL JURISDICTION).